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Bilateral Free Trade Agreements

By Greg Sherington

24 September 2013

Professor Luke Nottage comments on the challenges confronting the new Abbott Government, including the bilateral free trade agreements or their equivalents, that Australia has been negotiating with China, Japan and Korea.

In an interview with The Australian, Professor Nottage says, "It is high time for the new government to review" the investor-state dispute settlement (ISDS) barrier to negotiating deals, introduced in 2011.

"It is high time for the new government to review" the ISDS barrier to negotiating deals, introduced in 2011.

"This is delaying FTA negotiations with Japan, Korea, China and Trans-Pacific Partnership nations, and will also complicate negotiations for the Regional Comprehensive Economic Partnership, as those nations generally accept and expect this dispute resolution mechanism.

"Australia's outbound investors will no longer be able to compete on a level playing field in developing countries, compared to investors from other countries that can invoke ISDS to enforce investment treaty rights securing a minimum level of protection under international law.

Nottage says the answer is to revert to a case-by-case assessment during treaty negotiations, as the Coalition has foreshadowed, "and to draft ISDS provisions carefully in future treaties to balance the interests of private investors and host states."